EXHIBIT 1.1
CAPITAL ONE BANK
$_________________ Class A Floating Rate Asset Backed Certificates,
Series 199_-_
Capital One Master Trust
REPRESENTATIVE FORM OF CLASS A UNDERWRITING AGREEMENT
________ __, 199_
[Class A Underwriter]
Ladies and Gentlemen:
Section 1. Introductory. Capital One Bank (the "Seller" and the
"Servicer"), has formed a master trust entitled the Capital One Master Trust
(the "Trust"), which has issued and will continue to issue, from time to time,
asset-backed securities (whether in certificated or uncertificated form, the
"Certificates") in one or more series (each, a "Series"). Each Certificate
evidences a fractional, undivided percentage interest or beneficial interest in
the Trust. The property of the Trust includes receivables (the "Receivables")
generated from time to time in a portfolio of consumer revolving credit card
accounts and other consumer revolving accounts (the "Accounts"), collections
thereon and certain related property which has been conveyed and which will
continue to be conveyed to the Trust by the Seller. The Certificates to which
this Agreement applies will be issued pursuant to the Pooling and Servicing
Agreement, dated as of September 30, 1993, as amended and supplemented from time
to time (the "Base Pooling and Servicing Agreement"), between Capital One Bank
(as assignee and successor to Signet Bank/Virginia), as Seller and Servicer, and
The Bank of New York, as trustee (the "Trustee"), as supplemented by the Series
199_-_ Supplement, expected to be dated as of _________ __, 199_, between
Capital One Bank, as Seller and Servicer, and the Trustee (the "Series
Supplement," and together with the Base Pooling and Servicing Agreement, the
"Pooling and Servicing Agreement").
To the extent not defined herein, capitalized terms used herein shall
have the meanings specified in the Pooling and Servicing Agreement.
Pursuant to this Agreement, and subject to the terms hereof, the
Seller agrees to cause the Trust to sell to ___________________ (the "Class A
Underwriter") U.S. $____________ aggregate initial principal amount of Class A
Floating Rate Asset Backed Certificates, Series 199_-_ (the "Class A
Certificates"). Concurrently with the sale of the Class A Certificates, the
Seller proposes to cause the following to occur:
(a) The Trust will sell to ____________ (the "Class B Underwriter") U.S.
$___________ aggregate initial principal amount of Class B Floating Rate Asset
Backed Certificates, Series 199_-_ (the "Class B Certificates"), which will be
sold pursuant to a
separate underwriting agreement between the Seller and the Class B Underwriter
(the "Class B Underwriting Agreement").
(b) The Trust will issue to a purchaser or purchasers to be determined
(the "Class C Interest Holder") U.S. $___________ aggregate initial principal
amount of Class C Floating Rate Asset Backed Interests, Series 199_-_ (the
"Class C Interests," and together with the Class B Certificates and Class A
Certificates, the "Series Interests"), which Class C Interests will be sold to
the Class C Interest Holder pursuant to a loan agreement (the "Loan
Agreement") among the Seller and the Servicer, the Class C Interest Holder and
the agent for the Class C Interest Holder.
(c) The Trust will cause a cash collateral account (the "Cash Collateral
Account") to be established in the name of the Trustee for the benefit of the
holders of the Series Interests and funded in the amount of $__________.
Section 2. Representations and Warranties of the Seller. The Seller
represents and warrants to the Class A Underwriter as of the date hereof and as
of the Closing Date as follows:
(a)(i) A registration statement on Form S-3 (No. 333-66335),
including a prospectus and such amendments thereto as may have been
required to the date hereof, relating to the offering of certificates as
described therein from time to time in accordance with Rule 415 under the
Securities Act of 1933 (the "Act") has been filed with the Securities and
Exchange Commission (the "Commission") (which may have included one or more
preliminary prospectuses and prospectus supplements (each, a "Preliminary
Prospectus") meeting the requirements of Rule 430 of the Act) and such
registration statement, as amended, has become effective; such registration
statement, as amended, and the prospectus relating to the sale of the Class
A Certificates and the Class B Certificates offered thereby by the Seller
constituting a part thereof, as from time to time amended or supplemented
(including any prospectus filed with the Commission pursuant to Rule 424(b)
of the rules and regulations of the Commission (the "Rules and
Regulations") under the Act), are respectively referred to herein as the
"Registration Statement" and the "Prospectus"; provided that a supplement
to the Prospectus prepared pursuant to Section 5(a) shall be deemed to have
supplemented the Prospectus only with respect to the offering of the Series
of the Certificates to which it relates; and the conditions to the use of a
registration statement on Form S-3 under the Act, as set forth in the
General Instructions to Form S-3, and the conditions of Rule 415 under the
Act, have been satisfied with respect to the Registration Statement.
(ii) As of the Closing Date, the Registration Statement and the
Prospectus, except with respect to any modification to which the Class A
Underwriter has agreed in writing, shall be in all substantive respects in
the form furnished to the Class A Underwriter before such date or, to the
extent not completed on such date, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus that has previously been furnished to the
Class A Underwriter) as the Seller has advised the Class A Underwriter,
before such time, will be included or made therein.
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(iii) On the effective date of the Registration Statement, the
Registration Statement conformed in all material respects with the
applicable requirements of the Act and the Rules and Regulations, and did
not include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading and, on the Closing Date, the
Registration Statement and the Prospectus will conform in all material
respects with the applicable requirements of the Act and the Rules and
Regulations, and neither of such documents will include any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that the foregoing does not apply to
information contained in or omitted from either of the documents based upon
written information furnished to the Seller by the Class A Underwriter
specifically for use in connection with the preparation of the Registration
Statement or the Prospectus.
(b) The Seller has been duly incorporated and is a banking
corporation validly existing under the laws of the Commonwealth of Virginia
and has, in all material respects, full power and authority to own its
properties and conduct its business as described in the Prospectus, is duly
qualified to do business and is in good standing (or is exempt from such
requirements), and has obtained all necessary material licenses and
approvals (except with respect to the state securities or Blue Sky laws of
various jurisdictions), in each jurisdiction in which failure to so qualify
or obtain such licenses and approvals would have a material adverse effect
on the interests of holders of the Certificates under the Pooling and
Servicing Agreement.
(c) The execution, delivery and performance by the Seller of this
Agreement, the Loan Agreement and the Pooling and Servicing Agreement, and
the issuance of the Series Interests and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by
all necessary corporate action on the part of the Seller. Neither the
execution and delivery by the Seller of such instruments, nor the
performance by the Seller of the transactions herein or therein
contemplated, nor the compliance by the Seller with the provisions hereof
or thereof, will (i) conflict with or result in a breach of any of the
material terms and provisions of, or constitute a material default under,
any of the provisions of the Articles of Incorporation or By-laws of the
Seller, or (ii) conflict with any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the
Seller or its properties, or (iii) conflict with any of the provisions of
any material indenture, mortgage, agreement, contract or other instrument
to which the Seller is a party or by which it is bound, or (iv) result in
the creation or imposition of any lien, charge or encumbrance upon any of
its property pursuant to the terms of any such indenture, mortgage,
contract or other instrument.
(d) The Seller has duly executed and delivered this Agreement.
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(e) The Seller has authorized the conveyance of the Receivables and
the conveyance of an interest in the Seller's interest in any related Funds
Collateral to the Trust, and the Seller has authorized the Trust to issue
and sell the Class A Certificates.
(f) The Seller has delivered to the Class A Underwriter complete and
correct copies of publicly available portions of the Consolidated Reports
of Condition and Income of the Seller for the year ended _________ __,
199_, as submitted to the Governors of the Federal Reserve System. Except
as set forth in or contemplated in the Prospectus, there has been no
material adverse change in the condition (financial or otherwise) of the
Seller since __________ __, 199_.
(g) Any taxes, fees and other governmental charges in connection
with the execution, delivery and performance by the Seller of this
Agreement, the Loan Agreement, the Pooling and Servicing Agreement, and the
Class A Certificates shall have been paid or will be paid by the Seller at
or before the Closing Date to the extent then due.
(h) The Class A Certificates have been duly authorized. The Class A
Certificates, when validly issued in accordance with the Pooling and
Servicing Agreement and sold to the Class A Underwriter pursuant to this
Agreement, will conform in all material respects to the descriptions
thereof contained in the Prospectus and will be validly issued and entitled
to the benefits and security afforded by the Pooling and Servicing
Agreement. When executed and delivered by the parties thereto, each of the
Class A Certificates, the Pooling and Servicing Agreement and this
Agreement will constitute a legal, valid and binding obligation of the
Seller, enforceable against the Seller in accordance with its terms, except
to the extent that the enforceability thereof may be subject to bankruptcy,
insolvency, reorganization, receivership, conservatorship, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
in general and the rights of creditors of state banking corporations as
such laws would apply in the event of the insolvency, liquidation or
reorganization or other similar occurrence with respect to the Seller or in
the event of any moratorium or similar occurrence affecting the Seller and
to general principles of equity. All approvals, authorizations, consents,
orders or other actions of any person, corporation or other organization,
or of any court, governmental agency or body or official (except with
respect to the state securities or Blue Sky laws of various jurisdictions),
required in connection with the valid and proper authorization, issuance
and sale of the Class A Certificates pursuant to this Agreement and the
Pooling and Servicing Agreement have been or will be taken or obtained on
or before the Closing Date.
(i) The Trust is not now, and following the sale of the Series
Interests, will not be, required to be registered under the Investment
Company Act of 1940, as amended (the "1940 Act").
(j) Except for the Class A Underwriter, the Seller has employed or
retained no broker, finder, commission agent or other person in connection
with the sale of the Class A Certificates, and the transactions
contemplated by this Agreement, and neither
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the Seller nor the Trust are under any obligation to pay any broker's fee
or commission in connection with such transactions.
(k) No Pay Out Event or any event which after any applicable grace
period will become a Pay Out Event is subsisting in relation to any
outstanding Certificates and no event has occurred which would constitute
(after an issue of Certificates) a Pay Out Event or any event which after
any applicable grace period will become a Pay Out Event.
(l) Based on information currently available to, and in the
reasonable belief of, the management of the Seller, the Seller is not
engaged (whether as defendant or otherwise) in, nor has the Seller
knowledge of the existence of, or any threat of, any legal, arbitration,
administrative or other proceedings the result of which might have a
material adverse effect on the Class A Certificateholders.
(m) The representations and warranties of the Seller and Servicer in
the Pooling and Servicing Agreement are true and correct in all material
respects.
Section 3. Purchase, Sale and Issuance of Class A Certificates. (a)
Subject to the terms and conditions and in reliance upon the covenants,
representations and warranties herein set forth, the Seller agrees to cause the
Trust to sell to the Class A Underwriter, and the Class A Underwriter agrees to
purchase, the Class A Certificates. The Class A Certificates will bear interest
at [one-month LIBOR] as determined each month plus __% per year. The sale and
purchase of the Class A Certificates shall take place at a closing (the
"Closing") at the offices of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, 0000 X Xxxxxx,
X.X., Xxxxxxxxxx, X.X., at 10:00 a.m., New York City time, on _____________ __,
199_ (the "Closing Date"). The purchase price for the Class A Certificates
shall be equal to ______% of the aggregate initial principal amount of the Class
A Certificates. On the Closing Date, the Class A Underwriter shall against
delivery of the Class A Certificates as set forth in clause (b), pay (or cause
to be paid) the purchase price to an account to be designated by the Seller.
(b) The Seller shall deliver the Class A Certificates to the Class A
Underwriter through the facilities of The Depository Trust Company ("DTC") of
Book-Entry Certificates. The Class A Certificates shall be global certificates
registered in the name of Cede & Co., as nominee for DTC. The number and
denominations of definitive certificates so delivered shall be as specified by
DTC. The definitive certificates for the Class A Certificates will be made
available for inspection by the Class A Underwriter at the offices of Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP, at the address set forth above, not later than 1:00
P.M., New York City time, or as the Class A Underwriter and the Seller shall
agree, on the Business Day before the Closing Date.
Section 4. Offering by Class A Underwriter.
(a) The Seller authorizes the Class A Underwriter to take all such
action as it may deem advisable in respect of all matters pertaining to
sales of the Class A Certificates to dealers and to retail purchasers and
to member firms and specialists, including the right to make variations in
the selling arrangements with respect to such sales. Upon the authorization
by the Class A Underwriter of the release of the Class A
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Certificates, the Class A Underwriter proposes to offer the Class A
Certificates for sale upon the terms and conditions set forth in the
Prospectus. If the Prospectus specifies an initial public offering price or
a method by which the price at which such Class A Certificates are to be
sold, then after the Class A Certificates are released for sale to the
public, the Class A Underwriter may vary from time to time the public
offering price, selling concessions and reallowances to dealers that are
members of the National Association of Securities Dealers, Inc. ("NASD")
and other terms of sale hereunder and under such selling arrangements.
(b) Notwithstanding the foregoing, the Class A Underwriter agrees
that it will not offer or sell any Class A Certificates within the United
States, its territories or possession or to persons who are citizens
thereof or residents therein, except in transactions that are not
prohibited by any applicable securities, bank regulatory or other
applicable law.
(c) The Class A Underwriter agrees that:
(i) it has complied and will comply with all applicable provisions
of the Financial Services Act 1986 and the Public Offers of Securities
Regulations 1995 (the "Regulations") with respect to anything done by
it in relation to the Class A Certificates in, from or otherwise
involving the United Kingdom;
(ii) it has only issued or passed on and will only issue or pass on
in the United Kingdom any document received by it in connection with
the issue of the Class A Certificates to a person who is of a kind
described in Article 11(3) of the Financial Services Act 1986
(Investment Advertisements) (Exemptions) Order 1996 or are persons to
whom such document may otherwise lawfully be issued or passed on;
(iii) if it is an authorized person under Chapter III of part I of
the Financial Services Act 1986, it has only promoted and will only
promote (as that term is defined in Regulation 1.02(2) of the
Financial Services (Promotion of Unregulated Schemes) Regulations
1991) to any person in the United Kingdom the scheme described in the
Prospectus Supplement and the Prospectus if that person is of a kind
described either in section 76(2) of the Financial Services Act 1986
or in Regulation 1.04 of the Financial Services (Promotion of
Unregulated Schemes) Regulations 1991; and
(iv) it is a person of a kind described in Article 11(3) of the
Financial Services Act 1986 (investment Advisements) (Exemptions)
Order 1996.
Section 5. Covenants of the Seller. The Seller covenants and agrees with
the Class A Underwriter that:
(a) The Seller will prepare a Prospectus Supplement setting forth
the amount of Class A Certificates covered thereby and the terms thereof
not otherwise specified in
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the Prospectus, the price at which the Class A Certificates are to be
purchased by the Class A Underwriter from the Seller, the initial public
offering price at which the Class A Certificates are to be sold, the
selling concessions and allowances, if any, and such other information as
the Seller deems appropriate in connection with the offering of the Class A
Certificates, but the Seller will not file any amendments to the
Registration Statement as in effect with respect to the Class A
Certificates, or any amendments or supplements to the Prospectus, without
the Class A Underwriter's prior consent (which consent shall not be
unreasonably withheld or delayed); the Seller will immediately advise the
Class A Underwriter and its counsel (i) when notice is received from the
Commission that any post-effective amendment to the Registration Statement
has become or will become effective and (ii) of any order or communication
suspending or preventing, or threatening to suspend or prevent, the offer
and sale of the Class A Certificates or of any proceedings or examinations
that may lead to such an order or communication, whether by or of the
Commission or any authority administering any state securities or Blue Sky
law, as soon as practicable after the Seller is advised thereof, and will
use its reasonable efforts to prevent the issuance of any such order or
communication and to obtain as soon as possible its lifting, if issued.
(b) If, at any time when a Prospectus relating to the Class A
Certificates is required to be delivered under the Act, any event occurs as
a result of which the Prospectus as then amended or supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Prospectus to comply with
the Act or the Rules and Regulations, the Seller will promptly prepare and
(subject to review and no reasonable objection by the Class A Underwriter
as described in Section 5(a)) file with the Commission, an amendment or
supplement that will correct such statement or omission or an amendment
that will effect such compliance; provided, however, that the Class A
Underwriter's consent to any amendment shall not constitute a waiver of any
of the conditions of Section 6.
(c) The Seller will make generally available to the holders of the
Class A Certificates (the "Certificateholders") (the Certificates being the
applicable clearing Agency in the case of Book-Entry Certificates), in each
case as soon as practicable, a statement which will satisfy the provisions
of Section 11(a) of the Act and Rule 158 of the Commission with respect to
the related Series of Certificates.
(d) The Seller will furnish to the Class A Underwriter copies of the
Registration Statement (at least one copy to be delivered to the Class A
Underwriter will be signed and will include all documents and exhibits
thereto or incorporated by reference therein), the Prospectus, and all
amendments and supplements to such documents, in each case as soon as
available and in such quantities as the Class A Underwriter reasonably
requests.
(e) The Seller will assist the Class A Underwriter in arranging for
the qualification of the Class A Certificates for sale and the
determination of their eligibility
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for investment under the laws of such jurisdictions as the Class A
Underwriter may designate and will continue to assist the Class A
Underwriter in maintaining such qualifications in effect so long as
required for the distribution; provided, however, that neither the Seller
nor the Trust shall be required to qualify to do business in any
jurisdiction where it is now not qualified or to take any action which
would subject it to general or unlimited service of process in any
jurisdiction in which it is now not subject to service of process.
Section 6. Conditions to the Obligations of the Class A Underwriter. The
obligations of the Class A Underwriter to purchase and pay for the Class A
Certificates will be subject to the accuracy of the representations and
warranties on the part of the Seller herein as of the date hereof and the
Closing Date, to the accuracy of the statements of the Seller made pursuant to
the provisions thereof, to the performance by the Seller in all material
respects of its obligations hereunder and to the following additional conditions
precedent:
(a) The Class A Underwriter shall have received, with respect to the
Seller, a certificate, dated the Closing Date, of an authorized officer of
the Seller in which such officer, to the best of his or her knowledge after
reasonable investigation, shall state that (i) the representations and
warranties of the Seller in this Agreement are true and correct in all
material respects on and as of the Closing Date, (ii) the Seller has
complied in all material respects with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or before
the Closing Date, (iii) the Registration Statement has become effective, no
stop order suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been instituted or are
threatened by the Commission, and (iv) since the date of the Prospectus,
there has been no material adverse change in the condition (financial or
otherwise) of the Seller except as set forth in or contemplated in the
Registration Statement and the Prospectus or as described in such
certificate.
(b) The Class A Underwriter shall have received an opinion of XxXxxxx,
Xxxxx, Battle & Xxxxxx, L.L.P., Virginia counsel for the Seller, dated the
Closing Date, in form and substance satisfactory to the Class A Underwriter
and its counsel, to the effect that the statements in the Prospectus under
the heading "Certain Legal Aspects of the Receivables -- Transfer of
Receivables" to the extent they constitute matters of Virginia law or legal
conclusions with respect thereto, have been reviewed by such counsel and
are correct in all material respects. In rendering such opinion counsel
may (i) as to matters involving the application of laws other than the laws
of any jurisdiction other than the Commonwealth of Virginia, assume the
conformity of such laws with the laws of the Commonwealth of Virginia and
(ii) rely as to matters of fact, to the extent deemed proper and as stated
therein, on certificates of responsible officers of the Trust, the Seller
and public officials.
(c) The Class A Underwriter shall have received an opinion of General
Counsel of the Seller, dated the Closing Date, in form and substance
satisfactory to the Class A Underwriter and its counsel, to the effect
that:
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(i) The Seller has been duly incorporated and is a banking
corporation under the laws of the Commonwealth of Virginia, and has,
in all material respects, full corporate power and authority to own
its assets and operate its business as described in the Prospectus,
and had at all relevant times and now has, the corporate power and
authority to acquire, own and service the Receivables and its interest
in any related Funds Collateral transferred or proposed to be
transferred to the Trust as described in the Prospectus.
(ii) The Seller has full corporate power and authority to sign
the Registration Statement and to execute and deliver this Agreement,
and the Seller and the Servicer each have full corporate power and
authority to execute and deliver the Pooling and Servicing Agreement
and to consummate the transactions contemplated herein and therein.
(iii) The agreements referred to in clause (ii) have been
authorized by all necessary corporate action on the part of the Seller
and the Servicer and have been duly executed and delivered by the
Seller and the Servicer.
(iv) The Class A Certificates have been duly authorized by all
necessary corporate action on the part of the Seller and have been
duly executed and delivered by the Seller.
(v) No consent, approval, authorization or order of, or filing
with, any Virginia governmental agency or body or any Virginia court
is required on the part of the Seller or the Servicer under applicable
Virginia banking or other Virginia law for the consummation by the
Seller or the Servicer of the transactions contemplated in this
Agreement and in the Pooling and Servicing Agreement, except such as
have been obtained or made and such as may be required under state
securities or Blue Sky laws.
(vi) Neither the execution, delivery and performance by the
Seller or the Servicer of their obligations under this Agreement or
the Pooling and Servicing Agreement, the transfer by the Seller of the
Receivables and its interest in any related Funds Collateral to the
Trust, the issuance and sale of the Series Interests, nor the
consummation by the Seller or the Servicer of any other of the
transactions contemplated in this Agreement or the Pooling and
Servicing Agreement, will conflict with, result in a material breach
of or violation of any of the terms of, or constitute a default under,
the Articles of Incorporation or By-laws of the Seller or the
Servicer, each as amended, or any rule, order (known to such counsel),
statute or regulation, to the extent the foregoing relate to Virginia
banking or other Xxxxxxxx xxxx, of any Virginia court, regulatory
body, administrative agency or governmental body having jurisdiction
over the Seller or
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the terms of any material indenture or other material agreement or
instrument known to such counsel to which the Seller or the Servicer
is a party or by which it or its properties are bound; provided,
however, that such counsel need express no opinion as to state
securities or Blue Sky laws.
(vii) No consent, approval, authorization or order of, or filing
with, any United States governmental agency or body or any United
States Federal court is required on the part of the Seller under
United States Federal law for consummation by the Seller of the
transactions contemplated in this Agreement or the Pooling and
Servicing Agreement, except such as have been obtained or made and
such as may be required under state securities or Blue Sky laws.
(viii) Neither the execution, delivery and performance by the
Seller or the Servicer of their obligations under this Agreement or
the Pooling and Servicing Agreement, the transfer by the Seller of the
Receivables and its interest in any related Funds Collateral to the
Trust, the issuance and sale of the Series Interests, nor the
consummation by the Seller or the Servicer of any other of the
transactions contemplated in this Agreement or the Pooling and
Servicing Agreement, will conflict with, result in a material breach
of or violation of any of the terms of, or constitute a default under
any rule, order, statute or regulation, to the extent the foregoing
relate to United States Federal law, of any court, regulatory body,
administrative agency or governmental body having jurisdiction over
the Seller or the terms of any material indenture or other material
agreement or instrument which the Seller or the Servicer is a party or
by which it or its properties are bound; provided, however, that no
opinion is expressed with respect to any state securities or Blue Sky
laws.
(ix) Except as otherwise disclosed in the Prospectus or the
Registration Statement, to the knowledge of such counsel, there are no
actions, proceedings or investigations pending or threatened before
any court, administrative agency or other tribunal (A) asserting the
invalidity of this Agreement, the Pooling and Servicing Agreement or
the Series Interests, (B) seeking to prevent the issuance of the
Series Interests or the consummation of any of the transactions
contemplated by this Agreement, the Pooling and Servicing Agreement or
the Series Interests, which if adversely determined would materially
and adversely affect the holders of the Series Interests, or the
validity or enforceability of, this Agreement, the Pooling and
Servicing Agreement or the Class A Certificates, or (C) seeking
adversely to affect the United States Federal income tax attributes of
the Class A Certificates as described in the Prospectus under the
headings "Prospectus Summary -- Tax Status" and "Federal Income Tax
Consequences."
Subject to its customary practices and limitations relating to the scope of such
counsel's participation in the preparation of the Prospectus and its
investigation or verification of
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information contained therein, such counsel also shall state that nothing has
come to the attention of such counsel to cause it to believe that the Prospectus
on the Closing Date contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading (other than tax,
ERISA, financial, numerical and statistical information contained therein and
distribution information as to which such counsel need express no opinion); in
rendering such opinion counsel may (x) as to matters involving the application
of laws other than the laws of any jurisdiction other than New York and the
United States of America, assume the conformity of such laws with the laws of
New York and (y) rely as to matters of fact, to the extent deemed proper and as
stated therein, on certificates of responsible officers of the Trust, the Seller
and the Servicer and public officials (references to the Prospectus in this
clause include any supplements thereto). In rendering such opinion counsel may
(x) as to matters involving the application of laws other than the laws of any
jurisdiction other than the Commonwealth of Virginia, assume the conformity of
such laws with the laws of the Commonwealth of Virginia and (y) rely as to
matters of fact, to the extent deemed proper and as stated therein, on
certificates of responsible officers of the Trust, the Seller and the Servicer
and public officials.
(d) The Class A Underwriter shall have received an opinion of Xxxxxx,
Xxxxxxxxxx & Xxxxxxxxx LLP, special counsel for the Seller and the
Servicer, dated the Closing Date, in form and substance satisfactory to the
Class A Underwriter and its counsel, to the effect that:
(i) Each of this Agreement, the Pooling and Servicing Agreement
and the Class A Certificates constitutes the legal, valid and binding
obligation of the Seller and the Servicer enforceable against the
Seller and the Servicer in accordance with its terms.
(ii) The sale and delivery of the Class A Certificates in the
manner contemplated by this Agreement and the Pooling and Servicing
Agreement does not require (B) the registration of the Trust under the
1940 Act, or (C) the qualification of the Pooling and Servicing
Agreement under the United States Trust Indenture Act of 1939, as
amended.
(iii) The Class A Certificates when executed and authenticated in
accordance with the terms of the Pooling and Servicing Agreement and
paid for by the Class A Underwriter pursuant to this Agreement will be
duly issued and outstanding and will be entitled to the benefits of
the Pooling and Servicing Agreement.
(iv) This Agreement, the Pooling and Servicing Agreement and the
Class A Certificates conform in all material respects to the
descriptions thereof contained in the Registration Statement and the
Prospectus.
(v) The statements in the Prospectus under the heading "Federal
Income Tax Consequences" and the summary thereof under the heading
"Summary of Terms -- Tax Status" and under the headings "Certain Legal
Aspects of the Receivables" and "ERISA Considerations" to the extent
they constitute matters of United States
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Federal law or legal conclusions with respect thereto, have been
reviewed by such counsel and are correct in all material respects.
Subject to its customary practices and limitations relating to the scope of such
counsel's participation in the preparation of the Prospectus and its
investigation or verification of information contained therein, such counsel
also shall state that nothing has come to the attention of such counsel to cause
it to believe that the Prospectus on the Closing Date contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading (other than financial, numerical and statistical
information contained therein and distribution information as to which such
counsel need express no opinion); in rendering such opinion counsel may (x) as
to matters involving the application of laws other than the laws of any
jurisdiction other than New York and the United States of America, assume the
conformity of such laws with the laws of New York and (y) rely as to matters of
fact, to the extent deemed proper and as stated therein, on certificates of
responsible officers of the Trust, the Seller and the Servicer and public
officials (references to the Prospectus in this clause include any supplements
thereto).
(e) The Class A Underwriter shall have received (i) an opinion or
opinions of Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, special counsel for the
Seller and the Servicer, dated the Closing Date, in form and substance
satisfactory to the Class A Underwriter and its counsel, with respect to
certain matters relating to the transfer by the Seller of the Receivables
and its interest in any related Funds Collateral to the Trust, with respect
to the applicability of certain provisions of the Federal Deposit Insurance
Act, as amended by the Financial Institutions, Reform, Recovery and
Enforcement Act of 1989, with respect to the effect of receivership of the
Seller on such interest in the Receivables and any related Funds Collateral
and with respect to other related matters in a form approved by the Class A
Underwriter and its counsel and (ii) an opinion or opinions of XxXxxxx,
Xxxxx, Battle & Xxxxxx, L.L.P., Virginia counsel for the Seller and the
Servicer, dated the Closing Date, in form and substance satisfactory to the
Class A Underwriter and its counsel, with respect to the perfection of the
Trust's interests in the Receivables and in the Seller's interest in any
related Funds Collateral and certain other matters relating to any
applicable Enhancement, with respect to the applicability of certain
provisions of the Virginia Banking Act and any applicable Virginia
insolvency law and with respect to Virginia tax consequences relating to
the Trust and the Series Interests in a form approved by the Class A
Underwriter and its counsel; in addition, the Class A Underwriter shall
have received a reliance letter with respect to any opinion that the Seller
or Servicer is required to deliver to any Rating Agency;
(f) The Class A Underwriter shall have received from Cravath, Swaine &
Xxxxx a favorable opinion dated the Closing Date, with respect to the
issuance and sale of the Class A Certificates, the Pooling and Servicing
Agreement, the Prospectus and such other related matters as the Class A
Underwriter may reasonably require; and the Seller shall have furnished to
such counsel such documents as they reasonably request for the purpose of
enabling them to pass on all such matters.
12
(g) At the Closing Date, Ernst & Young, LLP, shall have furnished to
the Class A Underwriter a letter or letters, dated as of the Closing Date,
in form and substance satisfactory to the Class A Underwriter and its
counsel, confirming that they are certified independent public accountants
and stating in effect that they have performed certain specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the general
accounting records of the Trust and the Seller) set forth in the Prospectus
Supplement, agrees with the accounting records of the Trust and the Seller,
excluding any questions of legal interpretation.
(h) The Class A Underwriter shall have received evidence satisfactory
to it that, on or before the Closing Date, UCC-1 financing statements have
been filed in the offices of the State Corporation Commission of the
Commonwealth of Virginia, reflecting the interests of the Trust in the
Receivables and in the Seller's interest in any related Funds Collateral
and the proceeds thereof.
(i) The Class A Underwriter shall have received an opinion of Xxxxx,
Xxxxxx & Xxxxxx, LLP, counsel to the Trustee, dated the Closing Date, in
form and substance satisfactory to the Class A Underwriter and its counsel,
to the effect that:
(i) The Trustee has been duly incorporated and is validly
existing as a banking corporation under the laws of the State of New
York and has the power and authority to enter into and to perform all
actions required of it under the Pooling and Servicing Agreement.
(ii) The Pooling and Servicing Agreement has been duly
authorized, executed and delivered by the Trustee and constitutes a
legal, valid and binding obligation of the Trustee, enforceable
against the Trustee in accordance with its terms, except as such
enforceability may be limited by (A) bankruptcy, insolvency,
liquidation, reorganization, moratorium, conservatorship, receivership
or other similar laws now or hereinafter in effect relating to the
enforcement of creditors' rights in general, as such laws would apply
in the event of a bankruptcy, insolvency, liquidation, reorganization,
moratorium, conservatorship, receivership or similar occurrence
affecting the Trustee, and (B) general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law) as well as concepts of reasonableness,
good faith and fair dealing.
(iii) The Class A Certificates have been duly authenticated and
delivered by the Trustee.
(iv) The execution and delivery of the Pooling and Servicing
Agreement by the Trustee and the performance by the Trustee of their
respective terms do not conflict with or result in a violation of (A)
any law or regulation of the United States of America or the State of
New York governing the banking or trust powers of the Trustee, or (B)
the Certificate of Incorporation or By-laws of the Trustee.
13
(v) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or
the State of New York having jurisdiction over the banking or trust
powers of the Trustee is required in connection with the execution and
delivery by the Trustee of the Pooling and Servicing Agreement or the
performance by the Trustee thereunder.
(j) The Class A Certificates shall be rated at the time of issuance in
the highest rating category by Standard & Poor's Ratings Group and Xxxxx'x
Investors Service, Inc. and shall not have been placed on any credit watch
with a negative implication for downgrade.
(k) At or before the closing of the Class A Certificates, the Trust
shall have sold to the Class B Underwriter $__________ aggregate principal
amount of the Class B Certificates.
(l) At or before the closing of the Class A Certificates, the Trust
shall have duly issued to the Class C Interest Holder $____________
aggregate principal amount of the Class C Interests.
(m) At or before the closing of the Class A Certificates, the Cash
Collateral Account shall have been established in the name of the Trustee
for the benefit of the holders of the Series Interests, and shall have been
funded in the amount of $_________.
(n) The Class A Underwriter shall have received such information,
certificates and documents as the Class A Underwriter and its counsel may
reasonably request.
(o) All actions required to be taken and all filings required to be
made by the Seller under the Securities Act before the Closing Date for the
Certificates of such Series shall have been duly taken or made; and before
the applicable Closing Date, no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted or, to the knowledge of the Seller,
threatened by the Commission.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions or certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Class A Underwriter and its counsel, this Agreement and all
its obligations hereunder may be canceled at, or at any time before, the Closing
Date by the Class A Underwriter. Notice of such cancellation shall be given to
the Trust and the Seller in writing or by telephone or telecopy confirmed in
writing.
Section 7. Expenses. (a) Except as expressly set forth in this Agreement,
the Seller will pay all expenses incidental to the performance of its
obligations under this Agreement and will reimburse the Class A Underwriter for
any expenses reasonably incurred by it in connection with qualification of the
Class A Certificates and determination of their eligibility for investment
14
under the laws of such jurisdictions as the Class A Underwriter may designate
(including reasonable fees and disbursements of its counsel) and the printing of
memoranda relating thereto, for any fees charged by investment rating agencies
for the rating of the Class A Certificates and for expenses incurred in
distributing the Prospectus (including any amendments and supplements thereto)
to the Class A Underwriter. Except as specifically provided in this Section and
in Section 8 of this Agreement, the Class A Underwriter will pay all of its own
costs and expenses (including the fees and disbursements of counsel), transfer
taxes on resales of Class A Certificates by it and any advertising expenses
connected with any offers it may make.
(b) If the sale of the Class A Certificates provided for herein is not
consummated because any condition to the obligations of the Class A Underwriter
set forth in Section 6 is not satisfied or because of any refusal, inability or
failure on the part of the Seller to perform any agreement herein or to comply
with any provision hereof other than by reason of (i) a default by the Class A
Underwriter or (ii) the occurrence of any event specified in Section 14(a), (b)
or (c) of this Agreement, the Seller will reimburse the Class A Underwriter upon
demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by the Class A
Underwriter in connection with the proposed purchase, sale and offering of the
Class A Certificates.
Section 8. Indemnification. (a) The Seller will indemnify and hold
harmless the Class A Underwriter and each person, if any, who controls the Class
A Underwriter within the meaning of the Act or the Exchange Act and the
respective officers, directors and employees of each such person, against any
losses, claims, damages or liabilities, joint or several, to which the Class A
Underwriter or such controlling person may become subject, under the Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading;
and will reimburse the Class A Underwriter and each such officer, director,
employee or controlling person for any legal or other expenses reasonably
incurred by the Class A Underwriter and each such officer, director, employee or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that (i) the Seller will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or alleged
untrue statement in or omission or alleged omission made in any such documents
in reliance upon and in conformity with written information furnished to the
Seller by the Class A Underwriter specifically for use therein, and (ii) the
Seller shall not be liable to the Class A Underwriter to the extent that any
such loss, claim, damage or liability of the Class A Underwriter arises as a
result of a misstatement or omission or alleged misstatement or omission in any
Preliminary Prospectus that was corrected in the Prospectus (and copies of which
Prospectus were furnished to the Class A Underwriter) and the Class A
Underwriter, if required by law, failed to give or send to the purchaser, at or
before the written confirmation of sale, a copy of the Prospectus. This
indemnity agreement will be in addition to any liability which the Seller may
otherwise have.
15
(b) The Class A Underwriter will indemnify and hold harmless the Seller
against any losses, claims, damages or liabilities to which the Seller may
become subject, under the Act, the Exchange Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or arise
out of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Seller by the Class A Underwriter specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred by the Seller
in connection with investigating or defending any such loss, claim, damage,
liability or action. The Seller agrees with the Class A Underwriter that the
only information furnished to the Seller by the Class A Underwriter specifically
for use in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, is the information
under the heading "Underwriting" in any preliminary prospectus or the
Prospectus. This indemnity agreement will be in addition to any liability that
the Class A Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
clause (a) or (b), notify the indemnifying party of the commencement thereof;
but the omission and/or delay so to notify the indemnifying party will not
relieve it from any liability which it may have to any indemnified party
otherwise than under clause (a) or (b). In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may elect by written notice, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with
defense thereof other than reasonable costs of investigation. If the defendants
in any action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties that are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such action. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to
16
indemnify any indemnified party from and against any loss or liability by reason
of such settlement or judgment.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under this Section, then
such indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities
referred to in this Section, (i) in such proportion as is appropriate to reflect
the relative benefits received by the Seller on the one hand and the Class A
Underwriter on the other from the offering of the Class A Certificates or (ii)
if the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Seller on the one
hand and the Class A Underwriter on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Seller on the one hand and the Class A Underwriter on the other
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Seller bear to the total
underwriting discounts and commissions received by the Class A Underwriter. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Seller or by the Class A Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this clause (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
clause (d). Notwithstanding the provisions of this clause (d), the Class A
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Class A Certificates underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which the Class A Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the indemnifying party under this Section shall
be in addition to any liability which the indemnifying party may otherwise have
and shall extend, upon the same terms and conditions, to each person, if any,
who controls the indemnified party within the meaning of the Act.
Section 9. Survival of Representations and Obligations. The respective
agreements, representations, warranties and other statements made by the Seller
or its officers, including any such agreements, representations, warranties and
other statements relating to the Trust, and of the Class A Underwriter set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation, or statement as to the results thereof, made by
or on behalf of the Class A Underwriter, the Seller or any of their respective
officers or directors or any controlling person, and will survive delivery of
and payment of the Class A Certificates. The
17
provisions of Section 7 and Section 8 shall survive the termination or
cancellation of this Agreement.
Section 10. Notices. All communications hereunder shall be in writing and
effective only on receipt, and, if to the Class A Underwriter, will be mailed,
delivered or telecopied and confirmed to the address for the Class A Underwriter
set forth on the first page hereof, and, if sent to the Seller, will be mailed,
delivered or telecopied and confirmed to Capital One Bank, in care of Capital
One Services, Inc., 0000 Xxxxxxxx Xxxx Xxxxx, Xxxxx 0000, Xxxxx Xxxxxx, Xxxxxxxx
00000, attention of General Counsel with a copy to Director of Securitization.
Section 11. Applicable Law, Entire Agreement. This Agreement will be
governed by and construed in accordance with the law of the State of New York.
This Agreement supersedes all prior agreements and understandings relating to
the subject matter hereof.
Section 12. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors and controlling persons referred to in Section 8 hereof, and
their successors and assigns, and no other person will have any right or
obligation hereunder.
Section 13. Waivers; Headings. Neither this Agreement nor any term hereof
may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought. The headings in this
Agreement are for purposes of reference only and shall not limit or otherwise
affect the meaning hereof.
Section 14. Termination of the Obligations of the Class A Underwriter. The
obligations of the Class A Underwriter to purchase the Class A Certificates on
the Closing Date shall be terminable by the Class A Underwriter by written
notice delivered to the Seller if at any time on or before the Closing Date (a)
trading in securities generally on the New York Stock Exchange shall have been
suspended or materially limited, or there shall have been any setting of minimum
prices for trading on such exchange, (b) a general moratorium on commercial
banking activities in New York or Virginia shall have been declared by any of
Federal, New York or Virginia authorities, (c) there shall have occurred any
material outbreak or escalation of hostilities or other calamity or crisis, the
effect of which on the financial markets of the United States is such as to make
it, in the Class A Underwriter's judgment, impracticable to market the Class A
Certificates on the terms and in the manner contemplated in the Prospectus or
(d) any change or any development involving a prospective change, materially and
adversely affecting (i) the Trust Assets taken as a whole or (ii) the business
or properties of the Seller occurs, which, in the Class A Underwriter's
judgment, in the case of either clause (i) or (ii), makes it impracticable to
market the Class A Certificates on the terms and in the manner contemplated in
the Prospectus. Upon such notice being given, the parties to this Agreement
shall (except for the liability of the Seller under Section 7 and Section 8 and
the liability of the Class A Underwriter under Section 15) be released and
discharged from their respective obligations under this Agreement.
Section 15. Computational Materials and ABS Terms. (a) The Class A
Underwriter agrees to provide to the Seller, not less than two Business Days
prior to the date on which the
18
Seller is required to file the Prospectus pursuant to Rule 424(b), any
information used by it (in such written or electronic format as required by the
Seller) with respect to the offering of the Class A Certificates that
constitutes "Computational Materials" as defined in the Commission's No-Action
Letter, dated May 20, 1994, addressed to Xxxxxx, Xxxxxxx Acceptance Corporation
I, Xxxxxx, Xxxxxxx & Co. Incorporated and Xxxxxx Structured Asset Corporation
(as made generally applicable to registrants, issuers and underwriters by the
Commission's response to the request of the Public Securities Association dated
May 27, 1994 (the "Xxxxxx/PSA Letter")), that is not contained in the Prospectus
(without taking into account information incorporated therein by reference).
(b) The Class A Underwriter agrees to provide to the Seller, not less
than two Business Days prior to the date on which the Seller is required to file
the Prospectus Supplement pursuant to Rule 424(b), any information used by it
(in such written or electronic format as required by the Seller) with respect to
the offering of the Class A Certificates that constitutes "ABS Term Sheets," as
defined in the Commission's No-Action Letter, dated February 17, 1995, addressed
to the Public Securities Association, that is not contained in the Prospectus
(without taking into account information incorporated therein by reference).
(c) The Class A Underwriter agrees, assuming all information provided by
the Seller is accurate and complete in all material respects, to indemnify and
hold harmless the Seller, each of the officers and directors of the Seller and
each person who controls the Seller within the meaning of Section 15 of the Act
against any and all losses, claims, damages or liabilities, joint or several, to
which they may become subject under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement of a material fact contained in the
Computational Materials or ABS Term Sheets, if any, provided by the Class A
Underwriter, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, and agrees to reimburse each such indemnified party
for any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending or preparing to defend any such loss,
claim, damage, liability or action as such expenses are incurred. The
obligations of the Class A Underwriter under this Section shall be in addition
to any liability that the Class A Underwriter may otherwise have. The procedures
set forth in Section 8(c) and 8(d) shall be equally applicable to this Section
17(c).
19
If you are in agreement with the foregoing, please sign a counterpart
hereof and return it to the Seller, whereupon this letter and your acceptance
shall become a binding agreement between the Seller and the Class A Underwriter.
Very truly yours,
CAPITAL ONE BANK,
as Seller
By _____________________________
Name:
Title:
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above written.
[Class A Underwriter]
By ___________________________
Name:
Title:
